News Archive

When the great sailing ships of the 16th century ranged across the world's oceans in search of merchandise, the evolving law of the sea was intricately related to the birth of international law. Seafaring nations contested the freedom of the seas and claim and counter-claim continue to challenge today's UN Convention on the Law of the Sea. UWA's Dean of the Faculty of Law is an expert on the thorny issues that arise when several nations lay claim to maritime resources, from oil and gas to fisheries.

Few people are aware that France and Australia share a remote maritime boundary in the blue-grey reaches of the Southern Ocean.

Back in the 18th century France claimed the Iles Kerguelen - a group of volcanic islands populated by seals, penguins and seabirds. Today, the islands share a maritime boundary with Australia's Heard Island that accommodates a similar suite of fauna, along with an Australian Antarctic Division research station.

French interest in its far-flung territory spiked in the 1980s when, like Britain, its mercantile fleet faced considerable challenges. To avoid the more stringent regulations governing the registration of vessels in Europe, France began remotely registering its shipping on Kerguelen - and Britain does the same in relation to the Isle of Man.

Professor Stuart Kaye, Dean in the Faculty of Law and an expert in the Law of the Sea, explains that by creating open registries, nations with significant merchant fleets have found a way of surviving cut-throat competition from Flag of Convenience (FOC) shipping registered in countries like Liberia.

"Ships can only fly the flag of a single nationality when at sea or in port," explains Professor Kaye.

"Some countries are more prescriptive in the way they regulate registration. For example, Australia stipulates that those working in the industry must be paid award wages and have appropriate training. However, Liberian regulations are far more lax, with minimum certification in regard to working conditions, crewing and environmental safety.

"Today more than half the world's tonnage of shipping is registered in places with an ‘open registry' where levels of compliance are much reduced and shipping is therefore cheaper to operate.

"In Australia the Howard Government liberalised some of the regulations applying to foreign vessels and this resulted in considerable growth in foreign vessels in our ports while radically reducing the size of Australia's maritime industry."

Professor Kaye says that in this most globalised of industries, there is considerable concern about the number of oil tankers registered in places like Liberia that come to grief, polluting pristine beaches and coastal cities. However, he says, there is no easy answer because the interests arrayed against reform are substantial.

"Higher standards could double the cost of shipping goods around the world, and that would make a lot of people unhappy," he says.

"The result is that a country like France opts to have a large number of vessels registered at Kerguelen, a remote and largely unoccupied island in the southern Indian Ocean, appropriately dubbed by Captain James Cook the ‘Isle of Desolation'."

Professor Kaye suspects that his ‘maritime gene' came from forebears who hailed from the Isle of Wight and were engineers or sail makers in the island's extensive shipyards.

Clearly he's fascinated by maritime matters that, in the realm of his research, range from boundaries to fisheries management. He cites the Torres Strait (between the northernmost point of Australia and Papua New Guinea) as one of the world's most complex maritime boundary arrangements, with impacts on navigation and offshore legal regimes, and native title issues.

In a 2001 Melbourne Journal of International Law article, he wrote that in terms of sovereignty and jurisdictional issues, the Torres Strait region presents unique challenges.

"The issue of native title in offshore areas is particularly relevant in the Torres Strait because Australia's first native title claim originated there," he says.

"Ensuring adequate protection of vital resources and the support and maintenance of traditional communities are difficult enough without the presence of an essential international seaway, dangerous waters and a fragile reef ecosystem."

Australia and a newly-independent PNG finally agreed to allocate fisheries in the area to PNG while allowing islanders (who wanted to remain part of Australia) access to the surrounding waters.

"There are a number of Australian islands in waters north of the seabed boundary and they have a three mile territorial sea that is completely surrounded by PNG's seabed. As such the islands are enclaved."

He says the use of multiple maritime boundaries is not common, nor is the separation of seabed and water column jurisidiction easily accommodated under the UN Convention on the Law of the Sea.

Professor Kaye holds the rank of Commander in the Royal Australian Navy Reserve. He serves as a legal officer, providing advice in operations and international law for the Australian Defence Force and Border Protection Command.

Some of this advice has related to the thorny issue of piracy, where the Royal Australian Navy is among 23 nations that patrol the east coast of Africa where Somali pirates are increasingly active.

Professor Kaye says that when pirates are apprehended by the international fleet, any navy involved faces the dilemma of what to do with them. If they arrest and bring them for trial in the home country, they could claim asylum when released. While some African countries like Kenya have agreed to assist by trying and imprisoning pirates, there are limits to the number of pirates that can be dealt with in this way.

The UWA researcher observes that while piracy was a problem closer to home, in the Straits of Malacca, improved international cooperation between Indonesia, Malaysia and Singapore and the tsunami of 2004 have dramatically reduced the threat of piracy.

Professor Kaye is currently involved in research related to maritime claims in the Indian and Pacific Ocean for the Sea Power Centre in Canberra which is supported by the RAN.

He explains that maritime boundaries were established by the 1982 United Nations Convention on the Law of the Sea. In relation to Australia it means that we have complete sovereignty over the waters extending 12 nautical miles from the coast, and exclusive economic zone rights that extend 200 nautical miles.

When conflicts arise between nations with competing claims, the convention says they must be resolved on the basis of equity.

The establishment of a maritime boundary between Australia and Timor Leste has been described as "one of the longest, most convoluted sagas in maritime boundary delimitation".

The Timor Sea is rich in oil, gas and fish. Australia and Indonesia signed the 1997 Perth Treaty that established seabed and water column boundaries. However, when East Timor became independent, the Timor Sea Treaty was signed and agreement was reached in relation to the Greater Sunrise field.

While Professor Kaye's research is ongoing (he currently has an ARC Discovery grant on maritime legal practice and policy in the Indian Ocean and Arabian Gulf), since his arrival at UWA last year his focus has been on implementing the new curriculum structure.

He sees 2013 as a significant milestone in the history of the University. In addition to being 100 years since the first students enrolled at UWA, it will mark the first intake for the new three year Juris Doctor (JD) course in the Faculty of Law. Applications open mid year.

Getting to know the law school he heads, the new Dean has been delighted to learn of the achievements of its students and graduates.

"Our students and graduates are extraordinary," he says. "Many of our distinguished graduates teach in our programs and the Law School is extremely grateful that they are so very generous with their time, because their input adds greatly to the student experience."

The Law School annually hosts a summer school in conjunction with the Law Society of WA each February.

"It's an all-day event demonstrating our close engagement with the profession and there is nothing like it anywhere else in the country," says Professor Kaye. "Some 250 lawyers come to UWA and spend a day with us during which the major issues are discussed by speakers flown in from across the country and overseas.

"The summer school is essentially a continuing education gathering and we usually have about half of the Supreme Court present."

Professor Kaye studied at Sydney University and, after achieving a Masters, went on to further postgraduate studies at Canada's Dalhousie University which is renowned for its expertise in the law of the sea.

He was appointed to the International Hydrographic Organization's Panel of Experts on Maritime Boundary Delimitation in 1995 and in 2000 was an Arbitor under the Environmental Protocol to the Antarctic Treaty. He chaired the Australian International Humanitarian Law Committee from 2003 to 2009, for which he was awarded the Australian Red Cross Society Distinguished Service Medal. He was elected a Fellow of the Royal Geographical Society in 2007.

Published in Uniview Vol. 31 No. 2 Winter 2012